Government should have ideally introduced a Direct Tax Code, which was argued to be quite simple. The process of becoming simple is unfortunately very very difficult and in the process of being simple, it ultimately most of the time becomes complex. The complexity is primarily because the taxman wants more tax money by managing less tax payers, whereas tax payers want less tax out go, no tax questions, no restrictions on usage or investment of their money and at the same time robust government spending on infrastructure & social benefits. This mismatch of goals and roles results into complex tax solutions which helps tax professionals charge premium for their services.
Before 2020, government gave simplified tax rates to manufacturing companies, start-up companies and even to SMEs and now, it brought a new optional scheme of taxation introduced w.e.f. FY 2020-21 for Individuals & HUF tax payers. Article attempts to summarize the scheme vs its benefits and outgoes.
Benefits under the scheme:
| Sr. No. |
Slab (INR in Lakh) | New Tax INR |
Old Tax INR |
Max Benefit |
| 1 | Upto 5 Lakh | 0 | 0 | 0 |
| 2 | > 5 to 7.5 | 37500 | 62500 | -25000 |
| 3 | > 7.5 to 10 | 75000 | 112500 | -37500 |
| 4 | > 10 to 12.5 | 125000 | 187500 | -62500 |
| 5 | > 12.5 to 15 | 187500 | 262500 | -75000 |
| 0 | ||||
| Note: | ||||
| 1. Tax is calculated for highest amount in the slab as per the slab rate. | ||||
| 2. For income falling between the slab, a proportionate figure can be taken for decision making. | ||||
Text of the Scheme:
| Sec. | Text of Law | ||||||||||||||||||||||||||||||||||||||||||||
| 115BAC
(1) Gives Beneficial Slab Rate |
Individual & HUF are given an option from AY2122 (FY2021).
An optional tax slab on Total Income.
|
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| 115BAC
(2) (i) Takes Away Exemptions Deductions |
Total income for 115BAC (1) shall be calculated without taking benefit of the prescribed exemptions and deductions.
Following exemptions and deductions shall not be available if the option is exercised:
Note that 80CCD, 80JJAA & 80LA(1A) are still available. One shall also exclude standard deduction u/s 16 of Rs. 50,000/-. |
||||||||||||||||||||||||||||||||||||||||||||
| 115BAC
(2) (ii) (a) Denies Setoff Of losses |
Further, Total Income at 115BAC (1) shall be calculated without taking set off for following
|
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| 115BAC
(2) (ii) (b) Denies Setoff Of losses |
Further, Total Income at 115BAC (1) shall be calculated without taking set off for following
Therefore, for FY2021, if one opts for the scheme, loss under the head house property (including rent properties) shall not be allowed to be set off while calculating total income, to which new slab rate will apply. The loss under the house property from rented property arises only in case the interest on borrowed loan exceeds 70% of rent received. |
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| 115BAC
(2) (iii) |
Further, Total Income at 115BAC (1) shall be calculated after taking benefit of Sec. 32 except 32(1) (iia) for which a method will be prescribed. |
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| 115BAC
(2) (iv) |
Further, Total Income at 115BAC (1) shall be calculated without any exemption or deduction for allowances or perquisite, by whatever name called, provided under any other law for the time being in force. |
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| 115BAC
(3) |
The loss and depreciation referred to in clause (ii) of sub-section (2) shall be deemed to have been given full effect to and no further deduction for such loss or depreciation shall be allowed for any subsequent year. Provided that where there is a depreciation allowance in respect of a block of assets which has not been given full effect to prior to the assessment year beginning on the 1st day of April, 2021, corresponding adjustment shall be made to the written down value of such block of assets as on the 1st day of April, 2020 in the prescribed manner, if the option under sub-section (5) is exercised for a previous year relevant to the assessment year beginning on the 1st day of April, 2021. Therefore, loss and depreciation shall be deemed to have granted and so the benefit from out of that becomes zero, for the year for which option is exercised. |
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| 115BAC
(4) |
Further, Total Income at 115BAC (1) shall be calculated after taking benefit of deduction u/s 80LA (1A) i.r.t. units in the International Financial Services Centre |
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How to exercise the option:
|
Sec |
Status | Deadline | Concern |
|
115BAC (5) (i) |
Income only from business or profession | Before the due date of filing the ITR. | Option once exercised, it continues forever. There is no way back, it’s a one-time window |
| 115BAC
(5) (ii) |
Income from sources other than business or profession | Before the due date of filing the ITR. | Option can be exercised every year |
| 115BAC
(5) (i) |
Income from business or profession as well as other sources | Before the due date of filing the ITR. |
Option once exercised continues to apply to future years, until it is withdrawn for one year. Withdrawal is allowed Once in a life time only. Provided that if a person who exercised such option, ceases to have income from business or profession, can again claim the option every year after he so ceases said income. |
The time is tough for everyone around. COVID19 is adding new challenges on personal front, employment front and even on finances and disposal income front. It is a call to be taken, as one gets liquidity by paying 25,000 to 75,000 extra tax and remain free to spend or invest his salary / income wherever one wants to, as far as one’s income is upto 15 lakh or a less, by option for new tax scheme.
The key to decide is whether you want to get into a lock in and do forced investments for tax planning and remain averse or whether you want to take active interest in deciding what kind of investments you want to make for your own goals for return, by taking risk. Choice is yours.
Income Tax department has themselves made an excellent software for ready comparsion which is the most user friendly one and can be four at https://www.incometaxindiaefiling.gov.in/Tax_Calculator/
CA. Sanjay Joshi
On one side GOI introduced NRC and on another side FM introduced new rules to determine tax residency for Indian Income Tax, applicable from 01.04.2021, i.e. for Financial Year 2020-21, the COVID-19 year in India.
The law that was introduced in budget was draconial and is simplied, but what is simplied can only be understood and grasped when the time comes to comply it. Let’s understand a simple most summary of the new tax residency rules for India.
The one pager is
| Sec. | An Individual who is a | Condition i.r.t. Stay in India |
Tax Status |
Income subject to Indian Tax |
| 6(1)(a) | Any Individual | >= 182 Days | ROR | Global Income |
| 6(1)(c) | Any Individual | (i) >= 60 Days AND | ROR | |
| (ii) >= 365 days in 4 PY | ||||
| 6(1)(c) R/w Exp (a) |
COI & a member of an Indian Crew (for the year of leaving India) | >= 182 Days | ROR | |
| 6(1)(c) R/w Exp (a) |
COI & leaving India for an employment (for the year of leaving India) | >= 182 Days | ROR | |
| 6(1)(c) R/w Exp (b) R/w 155C |
A COI who is an Investor having only investment income & LTCG from specified capital assets who is on a visit to India, having total income < 15 Lakh | >= 182 Days | ROR | |
| 6(1)(c) R/w Exp (b) R/w 155C |
A POI who is an Investor having only investment income & LTCG from specified capital assets who is on a visit to India < 15 Lakh | >= 182 Days | ROR | |
| 6(1A) | a. COI having total income >= 15 Lakh AND b. Total income excludes foreign source income AND c. Such COI is not liable to tax in any other country Please note that Sec. 6(1A) dealing with deemed residency is for Indian Citizenship and is not applicable to Foreign Citizens, even though they hold POI. |
NIL | RBNOR
(DeemedResident) |
Indian Income AND Indian Source Income |
| 6(6)(a) | An Individual who is a Non Resident in 9 out of 10 preceding previous years OR | NIL | RBNOR | |
| An Individual who has stayed in 7 preceding previous years for |
<= 729 Days |
|||
| 6(6)(b) | A manager of an HUF Family who is a Non Resident in 9 out of 10 preceding previous years OR | NA | RBNOR | |
| A manager of an HUF Family who has stayed in 7 preceding previous years for |
<= 729 Days |
|||
| 6(6)(c) R/w 6(1)(c) R/w Exp (b) R/w 155C |
a. COI/POI having total income >= 15 Lakh AND Provided one doesn’t fall under 6(1)(c), i.e. stay in India in PY >=60 days & >=365 days in 4 immediate PY |
>= 121
Days but Days |
RBNOR (Upto FY1920, they were treated as NR) |
|
| All Together | CIO having Total Income (excluding Foreing Source Income ) > 15 Lakh AND who is not liable to tax in any other country |
NIL | RBNOR | |
| CIO having Total Income (excluding Foreing Source Income ) <= 15 Lakh AND who is not liable to tax in any other country |
NIL | NR | Only Indian Income |
|
| CIO/POI having Total Income (excluding Foreing Source Income )> 15 Lakh | <= 182 Days | NR | ||
| CIO/POI having Total Income (excluding Foreing Source Income )> 15 Lakh | <= 120 Days | NR | ||
| Foreign Citizen who is not a POI | <= 182 Days | NR | ||
Notes to above table:
| Stay is to be calculated for the year for which, residency status is being determined. |
| The day of entry and the date of exist, both are to be included. |
| A person shall be deemed to be of Indian origin if he, or either of his parents or any of his grand-parents, was born in undivided India; |
| The new residency law is effective from 01.04.2021 i.e. from Previous/Financial Year 202021 |
| Sr. No. 6 & 7 deal with CHAPTER XII-A ,SPECIAL PROVISIONS RELATING TO CERTAIN INCOMES OF NON-RESIDENTS |
| Please note that Residency Rules are amended only for COI or POI and not for Foreign Citizens (not being POI) |
| RBNOR stands for Resident but Not Ordinary Resident and NR stands for Resident and ROR stands for Resident and Ordinary Resident. |
| 1. Global Income refers to Indian Income (Sr. No. 1 to 4), Indian Source Income (Sr. No. 5 & 6) and Foreign Source Income (Sr. No. 7). 2. Indian Income refers to Indian Income (Sr. No. 1 to 4), Indian Source Income (Sr. No. 5 & 6) |
| Is not taxed in any other country means is not liable to tax in any other country or territory by reason of his domicile or residence or any other criteria of similar nature. The said text of law requires expert advice on international tax law, double tax avoidance treaty between Indian and the country of residence as well as decision making with regard to tie breaker rulers of the treaty to conclude tax residency in dual tax residency. |
Author produces a smart summary that can be referred for tax vs tax residency.
| Summary of Tax Impact vs Tax Residency | ||||
| Say | Type of Income | ROR | RBNOR | NR |
| Indian Income |
Income received in India | Tax in India0 @ Slab Rates |
||
| Income deemed to be received in India | ||||
| Income accrues or arises in India | ||||
| Income is deemed to accrues or arise in India | ||||
| Indian Source Income | Income accrues or arises outside India from business controlled in India | Tax in India @ Slab Rates |
Not Taxed |
|
| Income accrues or arises outside India from profession set up in India | ||||
| Foreign Source Income | Any other Income accrues or arises outside India (Practically it covers any income earned anywhere in the globe) | Tax in India @ Slab Rates |
Not Taxed |
|
One may note that tax residency for Non Residents who are known to frequently come to India for marriage, for family get to gether, for business and even for tours or profession, it is time for them that they may have to plan each year well in advance for their personal and money making or money spending activities so that they can truely comply with Indian Tax Law. Indian Citizenship now comes with a cost.
The article is for bare understanding of the subject, reader is advised to take professional advise before making conclusions. Author welcomes your query at sanjay@gjc.co.in
Author
CA. Sanjay Joshi
Humanity is facing terror attacks and we all understand that someone is financing such attacks for know or unknown motives. Money is very very powerful and human history confirms that countries, economies and power full human beings have behaved inhuman – immorally when it came to earn more or spend less money. Indian Government has already introduced measures like Benami Property Law, Income Tax on Black Money, Amended Companies Act dealing banning Deposits from non related members or directors, however, none of that actually impacted financing arrangements in India, as very big businesses are owned and operated as proprietorship, partnership firms, LLPs and associations, etc.
On the other-side, such smaller entities have been granted series of ease of doing measures like no GST registration for turnover up-to 20 lakh (now 40 lakh w.e.f. 01.04.2019), no tax audits for turnover up-to 1 Cr (Rs. 50 lakh for professionals), labour law relaxations, etc etc. Such entities were easily used as a means to accept money deposits (loans / advances) and route it for business or personal finances, whereas, the banking law and RBI law, makes it very clear since it’s inception that only banks and licence holding non banking finance companies can carry on the business of banking (accepting loans / deposits for interest etc), i.e. other’s were clearly banned to deal in money except taken for personal purpose from relatives and friends.
The above was a broad structure, but there was no single law or code that dealt with deposits taken by non corporate entities that are neither companies nor NBFCs. On 21st Feb 2019, Government of India, vide notification in official gazetee (Ref No Reg No. DL – (N) – 04/0007/2003-19), notified THE BANNING OF UNREGULATED DEPOSIT SCHEMES ORDINANCE, 2019, NO. 7 OF 2019, (referred to as BURDs). The ordinance banned all unregulated deposit schemes outstanding and on-going as on 21.02.2019 and there after and confirms all regulated deposit schemes. Later, on 31st July 2019, Government of India, vide notification in official gazetee (Ref No Reg No. DL—(N)04/0007/2003-19), made it a law. The serious outcomes and issues of the law are discussed in thi article.
The article aims to summarize the provisions of the law as RDS (Regulated Deposit Schemes) and URDS (Unregulated Deposit Schemes or say BURDs);
a. What is an Unregulated Deposit Scheme:
Sec. 2(17) of BURDS defines URDS means a scheme or arrangement under which deposits are accepted or solicited by any deposit taker by way of business and which is not a regulated deposit scheme, as per BURDSO.
First Schedule of BURDSO lists RDS as i.e. those deposit schemes governed under laws of SEBI, RBI, IRDA, State or Union Territory Government, NHB, PFRDA, EPFO, CRMSCS, MCA and any other scheme or arrangement registered with any regulatory body in India constitute or established under a statute. Central Government has retained powers to add to such regulated deposit scheme (RDS).
The preamble of the law, reads as “An Act to provide for a comprehensive mechanism to ban the unregulated deposit schemes, other than deposits taken in the ordinary course of business, and to protect the interest of depositors and for matters connected therewith or incidental thereto. Use of the word, other than deposits taken in the ordinary course of business, has raised serious concerns about the very purpose of the law.
Therefore, any scheme of deposit which is not an RDS is now banned as URDS.
b. Who are banned to deal in URDS as a deposit taker or depositor?
Sec. 2 (5) of BURDSO defines a Depositor as any person who makes a deposit;
Sec. 2 (6) of BURDSO defines a Deposit Taker as an individual, group of individuals, a proprietorship concern, a registered or an unregistered partnership firm, an LLP, A Co, an AOP, a trust, a co-operative or multi-state co-operative society or any other arrangement of whatsoever nature.
Therefore, the above makes it clear that any arrangement between two parties (being any person) in the nature of deposit if it is not an RDS, becomes URDS and is so banned with immediate effect i.e. onward 21.02.2019.
c. What is deposit for the purpose of BURDSO to be regarded as either RDS or URDS?
Sec. 2 (4) of BURDSO means any amount of money received by way of an advance or loan or in any other form, by any deposit taker with a promise to return whether after a specified period or otherwise, either in cash or in kind or in the form of a specified service, with or without any benefit in the form of interest, bonus, profit or in any other form and gives a excludes;
- loans from banks, co-operative banks, foreign,
- loans or financial assistance from PFI or NBFCs or RFI or Insurance Companies
- amounts received from an appropriate government or amounts received from any other source wherein repayment is guaranteed by an appropriate government
- amount received from a statutory authority set up under central or state laws
- amount received from sources approved and in accordance with FEMA
- capital contributions from partners to firm or LLP
- amounts received by an individual as loan from relatives (therefore, personal reason loans taken by individuals from relatives are not deposits – URDS and are not banned, whereas other deposits are banned even for individuals)
- amounts received by any firm by way of loan from the relatives of any of its partners
- (credit period) amounts received as credit by a buyer from a seller on sale of any movable or immovable property
- amounts received by an registered ARC under SRFAESIA
- deposits made u/s 34 or amounts accepted by a political party u/s 29B of Representation of People Act, 1951
- any periodic payment made by the members of the self-help groups operating within such ceilings as may be prescribed by State or Union Territory Government
- any other amount collected for such purpose and within such ceilings as may be prescribed by State Government
- any amount received in the course of, or for the purpose of, business and bearing a genuine connection to such business including –
- payment, advance or part payment for supply of goods or services and which is so repayable if goods or services are not so supplied
- advance received i.r.t. an immovable property under an agreement or arrangement subject to a condition that it is to be adjusted against such immovable property as per the terms of such agreement or arrangement (in other words, booking advance money paid by customers to builders are not deposits if they are backed by an agreement to sale / bannakhat, which is otherwise also required now due to RERA and other booking advance money are now deposits and hence banned)
- security deposit or alike as deposit for the performance of the contract of supply of goods or services, i.e. performance deposit money
- any advance under the long-term projects for supply of capital goods except i.r.t. immovable properties
- Provided that if any amounts referred at Sr. No 1 to 4 above, becomes refundable, it shall be so refunded within 15 days and otherwise, such amounts from the said 16th day becomes a URDS and is so banned.
- Provided further that if any such amounts become refundable, due to the deposit taker not obtaining required approvals under applicable law, it there and then becomes a URDS and is so banned.
Sec. 41 The provisions of this Act shall not apply to deposits taken in the ordinary course of business. Here comes the blow. How to interpret a deposit and that too which is taken in the ordinary course of business. Does that mean a deposit taken by a a. telecom service provider to give us a post paid telephone connection and or b. say a deposit taken by a government organization being a security deposit from it’s registered vendor and or c. say a deposit taken by builder as a loan for funding its building construction business, i surely believe it covers a and b, but not the c. One has to read the law in totality. Though Sec. 41 permits taking of deposits if they are to so taken in ordinary course of business, the very said law defines exhaustively the term “deposit” which is meant to include even advances and loans and also the advances taken for the immovable properties if they are booking amounts and also confirms that deposit doesn’t include deposits / loans from relatives if taken by individuals and or firms.
There has been serious of doubts and questions, however, Author has very clear views on the a BURDS.
Author’s simple understanding of the BURDSO is deposits or advances or loans taken by any businesses (even if taken by individual, if it is taken for business purpose, provided the business is not of lending money) if such amounts are in the course of genuine connection with such business, they are not URDS and are not so banned. Therefore, individuals taking deposits, advances or loans and further lending it to business entities on interest seems to have been banned as URDS, because Indian banking law doesn’t permit individuals to deal in money i.e. borrow and lend money, lending money from out of own capital is allowed. Author makes it clear that deposits shall not be confused with capital infused in business. In any case, personal loans or funds taken by individuals from relatives are not deposits at all and are not banned, noting that they are taken for personal end use purpose and not for business purpose.
CA. Sanjay Joshi
E governance is helping India climb upper ranks in global ranking for ease of doing business. One of the biggest trouble to foreign investors who invested in India where higher rates of withholding taxes on Indian income. There was a manual procedure and law to get the appropriate TDS Rate certificate and comply with TDS (Withholding taxes) provisions, however, practically due to bureaucratic culture it was virtually difficult or extremely time consuming to get such low rate TDS certificates from Indian Tax Authorities. However, the time has gone, in the era of E governance.
CBDT has made e procedures for seeking Low or NIL Rate TDS certificate vide Notification No G.S.R. 1068(E). w.e.f. 25/10/2018. The form can be downloaded from Form13
Application for Lower Rate or NIL Rate of TDS (withholding taxes) can be made u/s 197 by recipient of income of following category
Section 192 – Salary income – employee
Section 193 – Interest on securities – investor
Section 194 – Dividends – share holder
Section 194A – Interest other than interest on securities – investor
Section 194C – Contractors income – contractor
Section 194D – Insurance commission – insurance agent
Section 194G – Commission/remuneration/prize on lottery tickets – broker
Section 194H – Commission or brokerage – broker
Section 194-I – Rent – landlord
Section 194J – Fee for Professional or technical services – professionals or consultants
Section 194LA – Compensation on acquisition of immovable property – property buyer
Section 194LBB – Income in respect of units of investment fund – investor
Section 194LBC – Income in respect of investment in securitization trust – investor
Section 195 – Income of non residents – payee to non residents
Who can make the application – Eligibility for making application ?
Any person who is receiving the income (assessee) Application can be made if income of person attracts TDS and income of recipient justifies non-deduction or lower deduction of income tax.
What is the Timeline for making application?
No specific deadline However, as TDS is made on income of on-going financial year it is advisable to make an application at the beginning of financial year in case of regular income throughout the financial year and as and when the need arises in case of one-off incomes. In other-words, in case of one of income transactions, before the transaction actually takes place, one can plan for the lower or nil rate application, to streamline cash flow impact of the transaction between parties.
What is the Procedure for making application?
- Application in Form-13 is to be filed with Jurisdictional A.O, either online (on e-filing portal) or manually. Regions of Mumbai, Tamil Nadu and Karnataka have enabled online filing of Form 13.
- Taxpayers shall file correct and complete details for processing application
- If A.O is satisfied he would issue of certificate
- Copy of certificate can be attached to invoice or other document given to deduct, and he can use this to justify lower or NIL tax deduction and comply with the TDS obligations.
Documents to be submitted with Form-13
- Digitally Signed / e-verified Form 13 (or manually if it is so)
- Copies of return of income along with enclosures and acknowledgment for previous 3 financial years
- Copies of assessment orders for previous 3 financial years
- In case of assessee having business or profession income, copies of financial statement along with audit report if any for previous 3 financial years
- Projected profit and loss account for the current financial year
- Computation of income statement for previous 3 financial years and estimated computation for the current financial year
- Copy of PAN card
- Tax Deduction Account Number of all parties responsible for paying you
- E-TDS return acknowledgment for previous 2 financial years
- Estimated income during financial year
- Any other documents depending on nature of income or expenses being claimed against income like cost of acquisition or improvement
- Explanations w.r.t. clearance of earlier TDS defaults
Validity of application made under Sec-197
It is issued for particular financial year and stands valid from the date of issue throughout the financial year unless cancelled by the A.O. and or for a specific transaction as the case may be.
Governments believe that taxes shall be paid to them in advance and business or personal transactions can take place afterwards and therefore, author recommends that the opportunity to get lower or nil rate of TDS shall be explored w.r.t. each high value income or property transactions that attracts TDS or withholding tax obligations so that cash flows can be planned by parties and transactions can be optimized.
The text of notification and form are attached.
Author
CA. Sanjay Joshi (Co Author – Sneha Nair)
**Similar provisions exist for TCS u/s 206C(9) and shall be explored.
India is trending as 2nd fastest growing economy of the world and type of commercial and personal transactions between Indians and Person of Indian Origins / Overseas Citizen of India / Foreign Citizens are growing drastically and as well as the complexities in such transactions are also evolving faster. On one side government is putting mechanisms to improve India’s ease of doing business rating on the other side it is a serious concern for the government to strengthen – strictly implement the provisions of Foreign Exchange Management Act (FEMA) and relevant procedures relating to commercial or personal cross border transactions of individuals or corporate or businesses.
Unlike FERA, FEMA aims to facilitate cross border transactions and therefore, grants an opportunity cum facility to compound an offence that is committed under FEMA. Compounding for a layman is regularizing a commercial or personal cross border transactions by undoing the legal procedures which were otherwise not done when the transaction actually took place between the involved parties. For a school going children, it is like getting the home work done by informing the teachers that it was so not done in time.
RBI under FEMA has laid down detailed guidance backed by rules i.r.t. the compounding of offence procedures and delagated the powers by classifying compounding for current account transactions like issue of shares, inward / outward remittances and capital account transactions like purchase of properties in India or outside India etc.
The detailed as well as summarized compounding procedures are hosted on RBI website, the links are
Detailed compounding rules and Forms – https://www.rbi.org.in/scripts/BS_CircularIndexDisplay.aspx?Id=7314
FAQs on compounding of offence –
https://rbi.org.in/Scripts/FAQView.aspx?Id=80
Master – Direction on Compounding of Offences:
https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=10190&Mode=0
The article simply aims to be a quick guide to compounding, as it is always advisable to evaluate cross border transactions and put in place appropriate compliance beforehand, if not, even after the transactions got executed, it should be compounded, as it brings piece of mind, it establishes clear intentions to abide by laws and also adds to the credibility of individuals or business houses.
Compounding of Offence is a voluntary application that can be filed in prescribed form to RBI – ED as authorized along with a Rs. 5,000 demand draft payable in favor of ‘Reserve Bank of India’.
Enclosures: The application shall be enclosed with complete details of transactions along with related evidences – proofs and a declaration – undertaking that the applicant is not facing investigations from Indian DOE, CBI Etc.
Personal Hearing: During scrutiny authorities provide an opportunity to be personally heard, though it is not compulsory to appear. Optionally, one can also send a representative to attend, however, compounding is a voluntary admitted offence, it is preferred to attend personal hearing in person along with representatives.
Time: Compounding applications are to be disposed off within 180 days and an order for compounding fees is to be honored (i.e. fees shall be paid) within 15 days. If not paid, the applicant shall be treated as defaulter who never filed any compounding application and is subject to penal actions. Any offence compounded once can be again compounded if the same is not repeated within a period of three years of it’s first compounding and is treated as a fresh offence for compounding.
Disclosure: RBI has also started hosting the compounded offences and related orders at https://www.rbi.org.in/scripts/Compoundingorders.aspx
Cost of Compounding: Technically compounding fees can be as high as 300% of the transactions involved, however, as per the detailed guidance provided by RBI and as per the historical track record, the cost of compounding hardly ranges to 5-10% max for the transaction involved added by consultant fees. Commercially, it always make sense to compound an offence, instead of waiting for an RBI or government action, which can also result into imprisonment of authorized signatories.
Contraventions relating to any transaction where proper approvals or permission from the Government or statutory authority concerned, as the case may be, have not been obtained, such contraventions would not be compounded unless the required approvals are obtained from the authorities concerned.
It is of at-most importance to first evaluate the transactions, related compliance and the status thereof as well as it implications before proceeding for the compounding application. Noting that government and RBI has powers to even cease movable or immovable properties and impose severe penalties that may value up-to 300% of the value of the properties or transactions involved, one shall always consider compounding as means to secure piece of mind and clear KYC for India operations.
CA. Sanjay Joshi
Author
SETTING UP A FOREIGN BRANCH IN INDIA
Criteria:
To open a Branch Office of a Foreign Co. in India, one shall comply with Foreign exchange management act (FEMA) and compliances under the Companies Act, 2013.
The non-resident entity applying for a BO in India should have a financially sound track record – a profit making track record during the immediately preceding five financial years in the home country and net worth of not less than USD 100,000 or its equivalent. Net Worth means total of paid-up capital and free reserves, less intangible assets as per the latest Audited Balance Sheet or Account Statement certified by a CPA.
Procedure – Documents required for setting up a Branch Office:
- File a Permission to RBI in Form FNC-1. to Chief General Manager, Exchange Control Department, RBI central office, Mumbai. Documents to be submitted with FORM FNC-1 are mentioned below.We have filed up a draft form and a copy is attached.
- Following documents should be attested from home country (notary + Apostile) (Where the Company means Atul Inc.)
- Name of Company with Certificate of Incorporation in home country,
- Latest audited balance sheet – financials,
- Brief description of activities of Company – company profile
- Value of Import/Export to India by the Company during last three years (NIL)
- Detail of existing arrangements in India, if any; (NIL)
- Name and address of banker of the Company in the home country;
- Certified Copies of Memorandum and Articles of Association
- List of directors and secretary of the Company i.e. name, address, designation, date of appointment etc;
- Registered office address of the Company including telephone no. and email id;
- The name and address person resident in India authorized to accept on behalf of the company service of process and any notices or other documents required to be served on the company;
- Full address of the office of the company in India which is deemed to be its principal place of business in India including telephone no. and email id;
- Particulars of opening and closing of a place of business in India on earlier occasion or occasions; (NIL)
- Detail of other places of business in India, if any; (NIL)
- List of shareholders containing name of shareholder, address, number of shares and value of shares;
- DSC of authorized representative of foreign company or that of directors;
- Certified copy of PAN of authorized representative of foreign company or DIN if available;
- Particulars of subsidiary, holding or associate companies of the foreign company in India (NIL)
- Other documents required:The ROC appointed in state where the foreign co desires to establish its branch office, can demand all those documents which are mentioned in other documents below (Except Digital signatures of directors).
- Passport:For Foreign Nationals, Passport is a mandatorily as identity proof
- Address Proof:In addition to the Notarized or Apostilled Passport copy, the proposed Director must submit an address proof which is also notarized or apostil led. i.e. Driving License / Residence Card / Bank Statement / Government issued form of identity containing address.
- Residential Proof: In addition to the address proof, a residential proof must be submitted during the incorporation of the Company to validate the current address of the Director. Government issued form of identity containing address / Bank Statement / Electricity Bill / Telephone Bill / Mobile Bill
- Registered Office Proof: The registered document of the title of the premises of the registered office in the name of the company;
OR
The notarized copy of lease / rent agreement in the name of the company along with a copy of rent paid receipt not older than one month and The authorization from the Landlord (Name mentioned in the Electricity Bill or Gas Bill or Water Bill or Property Tax Receipt or Sale Deed) to use the premises by the company as its registered office. This is usually referred to as NOC from Landlord;
AND
Proof of evidenceof any utility services like telephone, gas,electricity, etc. depicting the address of the premises in the name of the owner or document, which is not older than two months.
- Shareholder:The identity and address proof as detailed in the article must be submitted for all the shareholders of the Company (i.e., subscribers to the Memorandum of Association (MOA) and Articles of Association (AOA).
Time: It takes 2 to 4 weeks to get the approval from RBI
Annual Activity Certificate (AAC):The Annual Activity Certificate (AAC) as at the end of March 31 each year along with the required documents needs to be submitted by the following: Audited Balance Sheet on or before September 30THof that year.
The BO needs to submit the AAC to the designated AD Category -I bank as well as Director General of Income Tax (International Taxation), New Delhi whereas the PO needs to submit the AAC only to the designated AD Category -I bank.
Cost & Benefits:
Incorporation grants a separate legal status from owners and has tax as well as commercial advantages. The cost of formation depends on the size of capital being invested in the Indian operations, ranging from 1-5%, which can be minimized by investing only minimum amounts towards capital and balance can be given to Indian Operations as Loan under the approved routes as per FEMA.
The authors have made an attempt to make a broad checklist w.r.t. start up by a Foreign Co in India.
CA. Sanjay Joshi
(Co Author – Krishna Dvivedi)
